This is a lovely day for a walk. I do believe Jay walking is no longer a crime, no? Okay, that’s not exactly what the law is. I was looking at Assembly Bill No. 2147 (2021-2022 legislative session), and it may not so much as make jaywalking lawful as it prohibits a peace officer, as defined, from stopping a pedestrian for specified traffic infractions unless a reasonably careful person would realize there is an immediate danger of collision with a moving vehicle or other device moving exclusively by human power. To be honest (and why not?), I didn’t study it scrupulously to be able to defend or oppose an argument over whether jaywalking is, or is not, now legal. But I like this character. Not that I can tell any birds apart, but I think this particular one feels at home around my place, and makes me smile.
Recognizing that someone might be interested in knowing what’s going on but has too little time to read all of the case summaries, I’ve decided maybe it would be helpful for me to provide a little preview of the coming attractions (aka, the summaries in the post). So here’s an encapsulation of the digests of the abstracts of the abridged summaries of the …, okay, never mind, you get my drift. Here are some of the high points in the summaries this post.
What we have in this post:
Restitution fines are no longer collectible after 10 years;
Section 1172.75 requires a full resentencing even if the now-invalid enhancement for the defendant’s prior prison term(s) was stayed;
The focus on a person seeking to set aside a conviction because of a prejudicial lack of awareness of its impact on immigration status is on that person’s own error and it is not necessary to show ineffective assistance of counsel;
It is critical to examine whether misconduct can give rise to two separate strikes;
There can be no “parole revocation fine” imposed where the sentence is life without the possibility of parole;
When a defendant is entitled to resentencing under section 1172.75, the court must conduct a full resentencing that includes an examination for the application of recent ameliorative changes in the law;
Occasionally the appellate court agrees that evidence is insufficient to support a charge;
The appellate court can correct an improper sentence (at least when jurisdiction has vested, something I mention in a Gary Note in the summary);
It might seem obvious, but a court cannot impose an enhancement that is not charged, nor can it merely stay an enhancement (the choices being to impose or strike the punishment for the enhancement [not to be confused with the procedure of imposing but staying punishment on a count to which Penal Code section 654 applies]).
All righty then, enough menu, here’s the full course.
Case: 000051
Defendant claims the restitution fine must be vacated because more than 10 years have elapsed since the court imposed the fine. The People agree, and so do we.
First Holding: Restitution fines are no longer collectible 10 years after their imposition. [See] Penal Code section 1465.9, subdivision (d) [“Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.”]
Second Holding: Section 1465.9 is retroactive to those whose judgments are not final. [See] In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments].
Case: 000052
Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the court to hold that hearing.
Holding: Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75 [See] People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius).
Case: 000053
The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 2022 conviction by a no-contest plea. He contends he was unable to defend against and meaningfully understand the adverse immigration consequences of his conviction because of his defense counsel’s prejudicial errors. We conclude the defendant has met his burden of establishing error under section 1473.7. His counsel’s attempts to negotiate an immigration-safe plea were insufficient. Counsel proposed a plea that was unlikely to be accepted by the People, instead of a plea to an alternative, immigration-safe offense that was comparable to the People’s offer. The defendant also established by a preponderance of the evidence that, but for his counsel’s error, he would not have entered a plea. Accordingly, we reverse the denial of his motion and direct the superior court to vacate his conviction.
First Holding: A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence if the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of such grounds for relief. [See] Penal Code section 1473.7.
Second Holding: The moving party must also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or a petitioner must first show that an error occurred—specifically, that he or she was unable to either meaningfully understand, defend against, or knowingly accept the immigration consequences of his conviction. [See] People v. Espinoza (2023) 14 Cal.5th 311, 319; People v. Padron (2025) 109 Cal.App.5th 950, 958.
Third Holding: The focus of this showing is the defendant’s own error. To establish error, a petitioner may, but need not, prove he received ineffective assistance from his counsel. [See] Penal Code section 1473.7, subd. (a)(1); People v. Padron (2025) 109 Cal.App.5th 950, 958-959.
Fourth Holding: Even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. [See] People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1268.
Fifth Holding: The petitioner must demonstrate that the error was prejudicial. [See] People v. Vivar (2021) 11 Cal.5th 510, 528; Pen. Code sec. 473.7, subd. (a)(1).
Case: 000054
We find there was insufficient evidence to prove beyond reasonable doubt that the defendant’s prior strikes were based on separate criminal acts, and we remand for resentencing on that basis. There was insufficient evidence to impose his federal conviction for bank robbery as a prior strike because it could not be shown that the conviction was based on a different criminal act than either of his two state robbery convictions.
First Holding: If two strike offenses are based on a single act, the court must dismiss one of the strikes. [See] People v. Vargas (2014) 59 Cal.4th 635, 638.
Second Holding: Prior convictions for “multiple criminal acts” “committed in a single course of conduct” may be treated as separate strikes, so long as the convictions are not “so closely connected that treating them as separate strikes would be contrary to the spirit of the Three Strikes law. [See] People v. Benson (1998) 18 Cal.4th 24, 35; People v. Vargas (2014) 59 Cal.4th 635, 648.
Third Holding: Penal Code section 654 does not apply to successive federal and state prosecutions. [See] People v. Belcher (1974) 11 Cal.3d 91, 98.; People v. Fielder (2004) 114 Cal.App.4th 1221, 1234 [Retrial of prior conviction findings is not barred by the state or federal prohibitions on double jeopardy even when a prior conviction finding is reversed on appeal for lack of substantial evidence].
[GARY NOTE: The California Supreme Court issued its opinion–published, of course, but hey!–in People v. Shaw on December 15, 2025. It concluded that only one strike can be based on the single act of vehicular manslaughter that resulted in the death of two occupants of the car his vehicle struck. One justice wrote a concurring opinion in which he questioned the continuing validity of People v. Benson (1998) 18 Cal.4th 24 (holding that two prior offenses committed seconds apart against a single victim may be treated as separate strikes) and People v. Fuhrman (1997) 16 Cal.4th 930 (holding that two offenses committed in quick succession against two separate victims qualify as separate strikes). Two other justices agreed with the concurring opinion. It may be that the majority believed that Shaw did not present the precise question raised in Benson and Furhman and therefore decided not to venture beyond the facts before it at this time. That’s pure speculation by me, of course. But there may be an audience in our high court willing to closely examine exactly what can constitute separate strikes where the crimes are closely related in time and nature.]
Case: 000055
There can be no parole restitution fine on sentences of life without the possibility of parole. We will strike the fine and direct the trial court to issue a new abstract of judgment.
Holding: Because defendant was sentenced to prison for life without the possibility of parole, her parole revocation fine should be stricken. [See] People v. Coleman (2024) 98 Cal.App.5th 709, 725.
Case: 000056
The defendant appeals an order partially denying his request for resentencing pursuant to Penal Code section 1172.75. We reverse the order because the defendant was entitled to have the court consider his eligibility for relief under Assembly Bill No. 333.
First Holding: Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly “invalid” enhancements; [See] People v. Saldana (2023) 97 Cal.App.5th 1270, 1276 ; People v. Lopez (2025) 17 Cal.5th 388.
Second Holding: Assembly Bill 333 (revising the elements that must be proven to support gang crimes and enhancement allegations) applies to cases where a defendant is resentenced pursuant to section 1172.75, even where there was a negotiated plea agreement [See] People v. Lopez (2025) 17 Cal.5th 388, 400.
Third Holding: Assembly Bill 333 took effect on January 1, 2022 and is considered ameliorative legislation. [See] People v. Lopez (2025) 17 Cal.5th 388, 397; People v. E.H. (2022) 75 Cal.App.5th 467, 477.
Fourth Holding: The trial court should have considered the applicability of Assembly Bill 333 in the context of the defendant’s resentencing under section 1172.75, whether or not his counsel brought the issue to the attention of the court. By its express language, section 1172.75 itself puts the onus on the trial court to “apply any other changes in law that reduce sentences.” Assembly Bill 333 is such a law and should have been addressed by the trial court. [See] Penal Code section 1172.75, subd. (d)(2).
Fifth Holding: In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all non-final cases. [See] In re Estrada (1965) 63 Cal.2d 740, 745.
Sixth Holding: For purposes of Estrada, the test for finality is “whether the criminal prosecution or proceeding as a whole is complete.” [See] People v. Esquivel (2021) 11 Cal.5th 671, 679.) (The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability.).
Case: 000057
Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement (see former § 667.5, subd. (b)) was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the trial court to hold that hearing.
Holding: Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75 [See] People v. Rhodius (2025) 17 Cal.5th 1050.
Case: 000059
We find there is insufficient evidence to support one of the convictions for sexual penetration. We find no other errors. Thus, we reverse in part, affirm in part, and remand for resentencing.
First Holding: When considering a challenge to the sufficiency of the evidence . . . , we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [See] People v. Lindberg (2008) 45 Cal.4th 1, 27.
Second Holding: In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [See] People v. Young (2005) 34 Cal.4th 1149, 1181.
Third Holding: The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. [See] People v. Bloom (1989) 48 Cal.3d 1194, 1208.
Fourth Holding: Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [See] People v. Bloom (1989) 48 Cal.3d 1194, 1208.
Case: 000060
The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.
First Holding: The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months. [See] Pen. Code, sec. 1170.1, subd. (a); People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months].
Second Holding: The court may correct unauthorized sentence at any time. [See] People v. Scott (1994) 9 Cal.4th 331, 354. [GARY NOTE: This may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review People v. Singleton (2025) 113 Cal.App.5th 783; People v. Boyd (2024) 103 Cal.App. 56; and People v. Codinha (2023) 92 Cal.App.5th 976 (and the cases they cite) if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]
Third Holding: Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification. [See] People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 (on the principle that the oral pronouncement normally controls).
Case: 000062
The trial court erred when it imposed but stayed the enhancement for a prior serious felony (§ 667, subd. (a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (§ 451.1, subd. (a)(1)). The Attorney General correctly concedes and additionally contends we can modify the judgment without a remand. We agree. The court also struck fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.
First Holding: A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (§ 667, subd. (a)) that was not alleged. [See] Penal Code section 1170.1, subd. (e); People v. Anderson (2020) 9 Cal.5th 946, 953; A claim that a sentence is unauthorized … may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court; People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, citing People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.
Second Holding: It is improper to stay the punishment for an enhancement, as opposed to striking it. [See] People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Lopez (2004) 119 Cal.App.4th 355, 364.
Third Holding: Because the court clearly indicated it would not impose these enhancements, remand is not required. [See] People v. Salazar (2023) 15 Cal.5th 416, 431.
Fourth Holding: The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment. [See] People v. Hamed (2013) 221 Cal.App.4th 928, 937–938.
Case: 000063
The defendant argues that the trial court abused its discretion in denying his request for a continuance (on day of trial) because his application for mental health diversion constituted good cause to do so. We agree, and we reverse.
First Holding: As to what is required to show an abuse of discretion, it has been described as a decision that exceeds the bounds of reason or one that is arbitrary, capricious, patently absurd, or even whimsical. But the standard cannot be boiled down to simply calling for reversal only if a ruling appears to be arbitrary, capricious or utterly irrational. [See] People v. Beames (2007) 40 Cal.4th 907, 92; Artus v. Gramercy Towers Condominium Assn. (2022) 76 Cal.App.5th 1043, 1051; People v. Williams (2021) 63 Cal.App.5th 990, 1000; People v. Jacobs (2007) 156 Cal.App.4th 728, 736–738.
Second Holding: The legal component of discretion was explained long ago in Bailey v. Taaffe (1866) 29 Cal.422, 424: “The discretion intended . . . is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . .” [See] Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407.
Third Holding: The decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [See] People v. Navarro (2021) 12 Cal.5th 285, 330.
Fourth Holding: We review the trial court’s denial of a continuance for abuse of discretion. In particular, we decide whether the denial of a continuance was so arbitrary as to violate due process. There are no mechanical tests for doing so [See] People v. Mungia (2008) 44 Cal.4th 1101, 1118; Ungar v. Sarafite (1964) 376 U.S. 575, 589.
Fifth Holding: In deciding whether good cause exists, courts consider whether the moving party has acted diligently, the anticipated benefits of the continuance, the burden that the continuance would impose on witnesses, jurors, and the court; and above all, whether substantial justice will be accomplished or defeated by a granting of the motion. [See] People v. Reed (2018) 4 Cal.5th 989, 1004P; People v. Doolin (2009) 45 Cal.4th 390, 450; People v. Gonzalez (2021) 12 Cal.5th 367, 387.
Sixth Holding: In sum, as the court explained—albeit in the civil context—in Hamilton v. Orange County Sheriff’s Department: We recognize that [defense] counsel was not optimally diligent, and he certainly could have better attended to the procedural details of obtaining a continuance. … But this relatively minor lack of diligence did not justify the substantial injustice the court’s order created. . . . Where denial of a continuance would result in a manifest injustice, as it did here, the policy disfavoring continuances must give way. [See] Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759.